Overview
Employers must be knowledgeable about lawful and unlawful interview and application questions to ensure that the organization's employment application form and interview questions requests information from applicants in a lawful manner. The guiding principle behind any question to an applicant—whether the question is asked by the interviewer or appears on the employment application—should be, "Can the employer demonstrate a job-related necessity for asking the question?" The intent behind the question, as well as how the information is used, is what the Equal Employment Opportunity Commission (EEOC) examines to determine if any discrimination has occurred.
Therefore, an applicant should be asked questions that are job-related only. Before asking the question, the interviewer should first determine whether this information is really necessary to judge the applicant's qualifications, level of skills and overall competence for the job in question.
Business Case
Interviewing prospective employees and using employment applications are important tools that employers use in the selection process. The objective is to determine whether an applicant is suitable for an available position. The interview and the application provide the employer an opportunity to obtain in-depth information about a job applicant's skills, work history, employment background and references. See 12 Unconventional Interview Questions That Recruiters Should Ask.
Despite specific information employers would like to have, they must avoid asking discriminatory questions in interviews or on application forms and resist basing an applicant's evaluation on criteria that are discriminatory in nature. Many discrimination complaints and lawsuits stem from interviews and application forms. Given that the cost for an employer to defend itself against a claim of illegal employment discrimination can be several hundred thousand dollars, an employer must be sure it conducts lawful interviews and uses application forms that have been thoroughly reviewed to exclude requests for prohibited information.
Disparate Impact
The EEOC's Compliance Manual, Discussion Letter and Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Exams address the issue of interview questions that, if used in making a selection decision, have a discriminatory effect by screening out protected groups for the job in question.
Hiring managers should keep in mind that even "facially neutral" (i.e., those that do not appear to be discriminatory on their face but rather are discriminatory in their effect) job requirements relating to education, experience and physical characteristics may be considered unlawful when the requirements screen out a disproportionately high percentage of candidates on the basis of protected status and are not justified by any business purpose.
This is referred to as the disparate impact theory of discrimination. The U.S. Supreme Court first described the disparate impact theory in 1971, in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971). The Court opined that Title VII of the Civil Rights Act of 1964 "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."
Thus, to avoid problems, employers should conduct ongoing reviews of all job criteria and interview questions to make sure they are job- and business-related. See Have You Seen These Gender Biases During Job Interviews?
Bona Fide Occupational Qualification
A bona fide occupational qualification (BFOQ) is a provision that permits discriminatory practices in employment if a person's "religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise"1 (42 U.S.C. §2000e-2(e)). To establish the defense of a BFOQ, the employer has the burden of proving that a particular class of employees (for example, males applying for jobs at Hooters) would be unable to perform the job safely or efficiently and that the BFOQ is reasonably necessary to the operation of the business. Typically, it is difficult for most employers that are not religious organizations to invoke the BFOQ defense, as the parameters surrounding it are limited. Title VII does permit employers to hire and employ employees on the basis of religion if religion is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Religious organizations do not typically need to rely on this BFOQ defense, however, because the "religious organization" exception in Title VII permits them to prefer their co-religionists. See EEOC: Bona Fide Occupational Qualifications.
Pre-Employment Inquires
As a general rule, state and federal equal opportunity laws prohibit the use of pre-employment inquiries that disproportionately screen out members based on protected status when the questions are not justified by some business purpose. The EEOC and state agencies take the position that the information obtained through pre-employment inquiries should be aimed solely at determining qualifications without regard to criteria based on irrelevant, non-job-related factors. Check your state laws for specific protections.
The EEOC offers the following guidance to employers that wish to avoid racial discrimination in hiring and promotions. "Race or color should not be a factor or consideration in making employment decisions except in appropriate circumstances as set forth at Section 15-VI-C of the Compliance Manual section on Race and Color Discrimination. Reasons for selection decisions should be well supported and based on a person's qualifications for the position." Accordingly, inquiries that reveal information bearing no relationship to the qualifications for the job sought (e.g., year of graduation from high school, child care arrangements, country of origin) have been viewed as evidence of an employer's discriminatory intent.
Clearly, unless the information is for a legitimate purpose (see information under "Bona Fide Occupational Qualifications" above and "Application Forms" below), pre-employment questions about disability, race, gender, religion, national origin or other protected classes can suggest that the information will be used as a basis for making selection decisions. If the information is used in the selection decision and members of particular groups are excluded from employment, the inquiries can constitute evidence of discrimination. See Employers Sued for Rejecting Hearing-Impaired Job Applicants.
Some less obvious examples of unacceptable inquiries are discussed below.
Military discharge
Military discharge inquiries are not illegal, but they are likely ill-advised. By making such inquiries, employers could subject themselves to possible disparate impact claims. The EEOC has stated that basing hiring decisions solely on military discharge status violates Title VII because discharge status has been found to adversely affect African-Americans, and it is not unequivocally tied to general business necessities. Questions relative to type of military discharge should be asked only when the information sought is directly relevant to the job and should be accompanied by a statement to the effect that less-than-honorable discharges are not absolute bars to employment, depending on the nature of the job sought. See Think Before Asking About a Veteran's Discharge Status.
Inquiring about veteran status (i.e., "Are you a military veteran?") is not forbidden under federal law, but state laws may prohibit such discrimination. See SHRM's State and Local Updates here. Then use the drop-down menu to access the Equal Employment Opportunity/Discrimination for each state.
The Uniform Services Employment Reemployment Rights Act (USERRA) protects against military service discrimination. As explained in the following FAQ from the Employer's Support for the Guard and Reserve (ESGR): Does USERRA protect against discrimination in initial hiring decisions?:
Yes. A person, institution, organization, or other entity that has denied initial employment to an individual is in violation of USERRA's anti-discrimination provisions. Under the act, an employer need not actually employ an individual to be his or her "employer," if initial employment was denied on the basis of the individual's military affiliation application for membership, performance of service, application for service, or obligation for service in the uniformed services. For example, if the individual has been denied initial employment because of his or her obligations as a member of the Guard or Reserve, the company or entity denying employment is an employer for purposes of USERRA. Similarly, if an entity withdraws an offer of employment because the individual is called upon to fulfill an obligation in the uniformed services, the entity withdrawing the employment offer is an employer for purposes of USERRA.
Educational requirements
Certain educational requirements are obviously necessary for some jobs. However, if the educational requirement exceeds what is needed to successfully perform the job and if it disproportionately excludes certain racial groups, it may violate nondiscrimination laws. See What You Should Know: Questions and Answers about the EEOC and High School Diploma Requirements.
Arrest and conviction records
Using arrest or conviction records as an absolute bar to employment disproportionately excludes certain racial groups. Therefore, such records should not be used in this manner unless there is a business need for their use.
Whether there is a business need to exclude persons with conviction records from particular jobs depends on the nature of the job, the nature and seriousness of the offense, and the length of time since the conviction or incarceration.
Unlike a conviction, an arrest is not reliable evidence that an applicant has committed a crime. Thus, an exclusion based on an arrest record is justified only if the conduct appears to be job-related and relatively recent and also if the applicant or employee actually engaged in the conduct for which he or she was arrested.
See: EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
Genetic Information Discrimination
As stated in this EEOC summary:
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment, took effect on November 21, 2009. Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs—referred to as "covered entities") from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information
Employment Application Forms
Employers should tread with caution when designing employment application forms. It is best to have company legal counsel review the form before distribution. As with interview questions, certain questions, such as those related to religion, arrest record and year of graduation from high school or college, should be avoided on application forms. Questions pertaining to race and asking for Social Security numbers are discussed below.
Race and Gender
A key issue is whether race and gender can be asked on an application, as it is often legitimately needed for affirmative action purposes or to track applicant flow. One way to obtain this information and simultaneously guard against discriminatory selection is for employers to use a voluntary self-identification form and to keep the information separate from the application. In that way, the employer can capture the information it needs and also ensure that it is not used in the selection decision.
Social Security number
Employers generally should not request Social Security numbers (SSNs) on an employment application form. Obtaining SSNs on the application increases the risk of identity theft and general privacy concerns because the application is often viewed by individuals who do not have a need to know this information. The employment application should request only information directly related to an applicant's ability to perform a specific job. As a general practice, employers should request SSN information only when absolutely necessary—for example, in conjunction with a background check, when completing a Form W-4 or when enrolling the employee in a benefits plan. This information should be requested separately from the employment application, and safeguards should be in place to protect and keep this information confidential. Employers should also implement procedures for safe disposal of this information once an employment decision has been made. Some states have adopted privacy and data security laws that require employers to have security measures in place if applications asking for SSN information are transmitted over the Internet or sent by mail when not in a sealed envelope.
Salary History
A growing trend in state and local laws prohibits asking about a job candidate's salary history due to concerns that this practice may perpetuate gender and racial pay gaps if employers base a new employee's pay on the individual's previous salary. See More Jurisdictions Are Banning Salary-History Inquiries.
Sample Interview and Application Questions
Recruiters and hiring managers must be cautious to avoid inquiries based on an applicant’s protected class or risk a claim of discrimination. The EEOC looks with “extreme disfavor” on questions about age, color, national origin, race, religion, gender or veteran status. If employers are asking these questions, they would have difficult time proving the questions were not used in the hiring decision. In addition, as stated previously, many state employment laws expressly forbid certain types of questions.
Following is a representative list of unacceptable and acceptable questions. Please note that this list is NOT all-inclusive.
In November 2015 President Obama announced an executive action directing federal employers to delay asking questions about a job applicant's criminal history until later in the application process. Many states, cities and private employers have already taken steps to "ban the box," which refers to the checkbox on employment applications asking if the applicant has ever been convicted of a crime. However, some federal employers and contractors still ask the question. The president's executive action will apply to federal employers, but not to contractors. See Fact Sheet: President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly-Incarcerated